Author: TSA Press

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

Amy Coney Barrett was an associate at what Biglaw firm when she did research and briefing work for the firm’s representation of George W. Bush in Bush v. Gore?

Hint: After the 2000 presidential election, Coney Barrett spent a week in Florida working on the case as an associate.

See the answer on the next page.

When the first cases appeared of home DNA kits revealing that a fertility doctor used his own sperm to treat his patients with infertility decades ago, they were shocking and abhorrent. But we also assumed that this was just a few bad apples. We were wrong. Instead, we’ve seen a surge in the number of doctors busted for unethical medical practices.

Peiffer Wolf, one of the leading firms representing plaintiffs in fertility fraud lawsuits, filed two more suits highlighting horrendous and illuminating cases this past week. Both were against doctors who used their own sperm to inseminate patients, instead of using the anonymous donor sperm promised to, and consented to, by the patients. In each of these cases, additional facts add to the already egregious acts.

Medical Rape

In one of the cases, Richards v. Kiken, the plaintiff alleges that she and her husband first turned to Dr. Michael Kiken for help achieving a pregnancy in 1978. They were promised that the doctor would use anonymously donated sperm from a healthy man resembling the spouse. Kiken did not look much like the spouse, and likely would have been rejected by a sperm bank if he had tried to donate, for reasons described below. Nonetheless, he chose, without the patient’s consent, to use his own sperm instead. The complaint introduces this action as “medical rape.”

Had Kiken tried to donate through a sperm bank, he likely would have been screened out as carrier of Tay-Sachs disease, a condition that progressively destroys nerve cells in the brain and spinal cord, and frequently leads to death in early childhood. Kiken passed on this condition to the plaintiff’s daughter as a carrier.

Not knowing any of this, plaintiff and her spouse returned for help having a second child. Kiken said that was not a problem as he had “retained the ‘number’ for the donor they had used to conceive their daughter.” Plaintiff’s son has, unsurprisingly, also been revealed to be genetically related to Kiken. Further, through DNA testing, plaintiff discovered another victim of Kiken, with a child only four months older than plaintiff’s daughter. The child grew up 15 minutes from the plaintiff’s family, and was part of the children’s friendship circles. (Talk about upping the chances of a significant other being a genetic half-sibling!)

The plaintiff sought Kiken’s help when she was residing in California and he was practicing in California. Kiken now practices in Virginia and, to this day, is actively licensed.

Drug Addict Doctor-Donor

The Kiken case was filed on September 16, 2020, in federal court in the Northern District of California. That same day, Peiffer Wolf also filed suit in state court in San Diego County against Dr. Phillip M. Milgram. In the Milgram case, a newlywed couple sought help to conceive in 1988. Milgram was practicing as an ob/gyn, and informed the then-20-year-old plaintiff that due to her husband’s male-factor infertility, she would need to undergo artificial insemination. Milgram told the plaintiff and her spouse that the donated sperm would cost $150, and that the sperm would be from a colleague of his that was a physician at the University of California, San Francisco.

Yep! You guessed it. Milgram used his own sperm to impregnate the plaintiff. No word on the $150.

When plaintiff and her spouse went through a divorce in the 1990s, plaintiff’s spouse disclaimed paternity of their son, and refused to pay child support, because he was not the child’ biological father. Sounds like a real winner! While litigating over the divorce and child support issues, Plaintiff discovered that Milgram had not obtained the requisite signature from the spouse to establish paternity under the law in 1988. In a bizarre move, after plaintiff’s divorce attorney had tried to reach Milgram, the doctor called plaintiff directly and angrily demanded she tell him what was happening. When plaintiff explained that the attorney was looking for the paternity paperwork her spouse was supposed to have signed, the doctor hung up. Weird.

Plaintiff was awarded sole custody, and the spouse was adjudicated as off the hook for any child support due to the lack of signed consent to paternity.

But the bad facts don’t stop there. After the plaintiff’s adult son took a DNA test for fun, he learned some very nonfun facts about his surprise doctor-dad. It turns out Milgram had been actively abusing narcotics at the time of his treatment of the plaintiff. The doctor surrendered his California medical license in 1999 after some pretty terrible allegations, including, prescribing Xanax and Prozac to his nurse-girlfriend (an addict who died by suicide shortly thereafter), practicing medicine while intoxicated, and attempting to perform an abortion on a patient who was not, in fact, pregnant.

Failing The 12 Steps

Milgram later had his medical license reinstated in California after confirming that he had worked through all of the 12 steps of an addiction recovery program. The plaintiff’s complaint points out that of the 12 steps, Step 8 requires identifying those the person has hurt, and Step 9 requires making amends. Milgram has in no way acknowledged, accepted responsibility, or attempted any amends for his violation of the plaintiff. Time to go back to Step 8 and 9, Dr. Milgram.

So Many Cases. What’s the Solution?

Peiffer Wolf, the firm representing both plaintiffs and other victims of fertility fraud, has been vocal that the fertility system in the United States needs greater regulation. They have proposed that we look to the United Kingdom for guidance. Professor Jody Madeira, of the University of Indiana Bloomington Maurer School of Law, is a leading expert on fertility fraud. She does not disagree that the UK’s model of a nationwide regulatory framework, working hand-in-hand with local infertility treatment mandates and donor registries, would be great in the United States.

In the meantime, given the difficulty passing federal legislation in the current American political climate, Madeira has been working with others to pass or strengthen state legislation to better regulate the fertility industry. She is especially focused on state-level legislation in order to provide patients and their adult children victimized by fertility fraud with greater power to file suit or hold these physicians accountable in other ways.

Kuddos to Peiffer Wolf, Madeira, and others on their continued advocacy for fertility fraud victims and fierce efforts to improve the system.

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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

We have reached the Mad King stage of the Trump administration, where the president barks out an insane, unconstitutional command, and the White House lawyers scurry off to package it into something resembling a legal order.

Next he’ll be issuing proclamations that it must rain on election day, but only in blue states.

It all started with the New York Times’ 1619 Project, which posits that 1619, the year the first slave ship arrived on the continent, is the true “birth year” of America. The original piece by reporter Nikole-Hannah Jones, who won a Pulitzer Prize for her work, was developed into a school curriculum which treats the original sin of slavery and its echo in racist laws and policies after the Civil War as the defining characteristic of American identity.

There’s no indication that the 1619 Project’s curriculum has been widely adopted in schools, but in the wake of the protests against systemic racism in policing after George Floyd’s killing, prominent right-wing figures such as Arkansas Senator Tom Cotton and talkshow host Ben Shapiro have attempted to flip the script. It’s not police who kill Black Americans who are racist; actually it’s people who talk about racism who are the real racists. And they do it because they hate America.

“The self-proclaimed ‘anti-racist’ left — a left that sees all of human relations reduced to a rudimentary correlation of skin color and inequality, an analysis we used to call racist — has decided that the culture must be cleansed of all of those who will not be drafted into its woke army,” Shapiro wrote in his nationally syndicated column this July, conveniently casting himself and his fellow conservatives as the real victims, valiantly fending off attack by an army of woke liberals, even as police were unleashing clouds of teargas on unarmed protestors.

And then it was off to the … races. (Sorry.)

Trump mainlines six or seven hours a day of Fox and OANN programming assuring him that hordes of BLM protestors are storming the suburbs to indoctrinate American youth with anti-patriotic ideas about systemic racism; Trump shouts at rallies and sends out tweets warning that Cory Booker (!) will bring Section 8 housing to destroy the American dream; and then those rallies and tweets are reflected back to him the next day as Tucker, or Sean, or Jeanine, or Laura reassures him that, yes, Mister President, sir, Democrats are the real racists.

Which is how we ended up with Trump ordering an end to anti-bias training in federal agencies last week, and then expanding the order to all federal contractors today.

Well, kind of.

Here’s the actual text of the order:

The contractor shall not use any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating, including the concepts that (a) one race or sex is inherently superior to another race or sex; (b) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (c) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (d) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (e) an individual’s moral character is necessarily determined by his or her race or sex; (f) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (g) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (h) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. The term “race or sex stereotyping” means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex, and the term “race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.

Which shouldn’t be a problem, since pretty much no one’s saying that. Even the handful of examples dredged up in the verbiage of the order itself about supposedly racist trainings don’t stand up to scrutiny, much less indicate a widespread campaign to indoctrinate federal contractors and employees into a state of un-American wokeness.

For instance, the order refers to “Materials from Sandia National Laboratories, also a Federal entity, for non-minority males stated that an emphasis on ‘rationality over emotionality’ was a characteristic of ‘white male[s],’ and asked those present to ‘acknowledge’ their ‘privilege’ to each other.”

As Josh Hawley himself acknowledged when he first brought Sandia Labs to right-wing attention, the “rationality over emotionality” and other stereotypes of “white male[s]” were generated by the participants themselves in response to a prompt during an outside training.

The National Museum of African American History and Culture months ago removed a graphic from its website describing the nuclear family as an aspect of “white culture.” Nevertheless, these and a handful of other cases are cited as evidence that “many people are pushing a different vision of America that is grounded in hierarchies based on collective social and political identities rather than in the inherent and equal dignity of every person as an individual.”

In fact, the order goes all the way through the looking glass to accuse anti-racists of being on the side of the Confederates in the civil war.

This destructive ideology is grounded in misrepresentations of our country’s history and its role in the world. Although presented as new and revolutionary, they resurrect the discredited notions of the nineteenth century’s apologists for slavery who, like President Lincoln’s rival Stephen A. Douglas, maintained that our government “was made on the white basis” “by white men, for the benefit of white men.” Our Founding documents rejected these racialized views of America, which were soundly defeated on the blood-stained battlefields of the Civil War. Yet they are now being repackaged and sold as cutting-edge insights.

Chutzpah!

At bottom, this order does exactly nothing. It demands that federal contractors stop saying that white people are bad and bear collective responsibility for systemic racism — which they weren’t — and post a piece of paper saying as much. Whether this has a chilling effect, with federal contractors canceling all anti-bias trainings for fear of running afoul of this vaguely worded diatribe, remains to be seen. But once again, your federal tax dollars are being used to repackage the rants of a madman into something resembling law.

And now they’re promising to reform the entire American healthcare system by executive order “in the days ahead.”

Can’t hardly wait.

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

I, like many, am saddened by the recent passing of Justice Ruth Bader Ginsburg. The timing of her death could not be worse as it has exacerbated the civil unrest in this country while we live with a virus pandemic that doesn’t care who you vote for in November. Honestly, I don’t know much about Justice Ginsburg other than her general public stature. I am more familiar with her late husband Martin Ginsburg, an eminent tax attorney.

Republicans have planned for this moment, probably for years. All possible scenarios have been addressed, confirmation votes have been assured, and deals have been made for those on the fence or who face tough re-election battles. President Donald Trump said that he will announce his nomination by the end of the week. But the fact that they are moving so quickly to replace the vacant court seat tells me that there is a good chance that the balance in power will shift in 2021.

Trump’s nominee will face a tough crowd and it’s not just the usual criticism from the opposition. Unless he nominates Merrick Garland or a surprise liberal-centrist, the nominee will be attacked, scrutinized, shamed, and doxed. We might even see a few funny internet memes at their expense. Some media outlets and their many commentator-journalists will be relentless.

When a liberal justice is being replaced by a conservative one, there has been surprise and drama. A mysterious figure will suddenly appear, accusing the nominee of something heinous they did in the past. The accuser might have objective, unbiased proof to back up their accusations. Or they will have no evidence but knows that the nominee won’t have any either, thus turning this into a battle of rhetoric and credibility.

The accuser will be raked over the coals by Republicans and their supporters. He or she will be asked, “Why come out now? You knew about the nominees and their front-runner status for a long time. Why didn’t you let us know sooner?” To which the accuser will respond: that they were scared, didn’t think it was a big deal, or they didn’t think the nominee would make it this far. Regardless, it is better to be late than never, and they see it as their patriotic duty to put their country’s needs (as they see it) before their own.

Once this is over, the accuser may have to go into hiding for a while. But chances are they will be fine in the end, have a six-figure GoFundMe nest egg for their trouble, and will be a hero to the liberal crowd.

In the final analysis, two things are certain. First, it won’t matter if there is evidence or not. Trump’s opponents will automatically believe the accuser without question. This is because they are more interested in intimidation. Enough to force the nominee to withdraw and force Republican senators into changing their vote. They are less interested in knowing whether the accuser is telling the truth, exaggerating like a résumé, or even lying. And anyone who questions the accuser will be unfriended, blocked, cancel cultured, and accused of whatever “-ism” is most convenient.

Second, this tactic — while making popcorn-worthy political theater — is not likely to work. It didn’t work with the Clarence Thomas nomination nor with Brett Kavanaugh. Given the Senate’s makeup and the statements from supposedly on-the-fence Mitt Romney and Chuck Grassley supporting a full vote before the next inauguration, confirmation is near certain. It might be a scorched-earth victory but a victory nonetheless.

So who knows if there will be any surprise appearances during the confirmation process. Most of the leading Democratic politicians have stated that “all options will be open” to fight the confirmation although no one has stated any specifics. Some have suggested another impeachment hearing although it is unclear how that will stall anything. Or a private individual might act on their own. Or they may wait until 2021 when court-packing becomes an option should the Democrats take control.

I understand why Democrats are fighting this so passionately. Replacing a liberal justice or a swing-vote justice with a conservative one will tilt the court further to the right and many 5-4 decisions will either be overturned or strengthened. Abortion rights and other issues Democrats hold dear will be threatened. Obviously, they cannot accept this lying down as it will anger their voter base, particularly a growing faction who have accused the leadership of being “weak asses.”

On the other hand, I expect the nominee will be ready to fight back, especially if the nominee is a woman. She saw what Thomas and Kavanaugh went through, and she should be ready to face the same level of grilling, both from Democratic senators and their supporters. It’s safe to say that she won’t be crying in front of the judiciary committee.

Democratic leaders should be mindful of the aftermath. While the confirmation process will mobilize their voter base, there will also be those lone-wolf psychopaths who are itching for a reason to riot under the guise of protesting if Trump’s nominee is confirmed. If the unrest gets bad enough, it will turn off moderate voters who want order restored.

So grab your popcorn, folks. Because of the stakes involved, Trump’s nominee to replace Ginsburg will run through a political gauntlet. Not only that, we’re likely to see someone accuse the nominee of something, and we’ll be expected to believe that person without question. But since this is an election year, how each party behaves through the process might determine who gets control of the Senate and the White House in 2021.

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Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

Sure, Amy Coney Barrett is still the odds on favorite to be Donald Trump’s pick to replace Ruth Bader Ginsburg on the Supreme Court, but it’s far from a done deal. The other name making its way up the shortlist is Eleventh Circuit judge Barbara Lagoa. So what does the president have to say about Judge Lagoa, a person, remember, he’s already appointed to a lifetime position:

She’s an extraordinary person. I’ve heard incredible things about her. I don’t know her. She’s Hispanic and highly respected. Miami. Highly respected.

Well, that’s a thing, and probably way more telling than Trump intended. Bloomberg notes the electoral implications if Trump picks Lagoa:

Lagoa’s legal bona fides hold some political appeal for Trump as the election bears down — a woman of Hispanic heritage from Florida is a trifecta of forces that will help make or break Trump’s fate this fall. He’s trailing Biden in Florida and trailing widely among women, but polls show he’s doing better among Hispanic voters than he did in 2016.

But what do you — and the president, apparently — need to know about the potential SCOTUS pick? Well, she’s the daughter of Cuban immigrants, something that comes up a lot in the talking points about her. She attended Florida International University for undergrad, and got her JD from Columbia. She did a stint in Biglaw and was an Assistant United States Attorney for the Southern District of Florida in the Civil, Major Crimes, and Appellate Sections.

Lagoa’s time at Greenberg Traurig — from 1998 to 2002 — was noteworthy. During that time, she was the lead in the case of Elian Gonzalez, the Cuban minor who sought asylum in the U.S., as reported by Law.com:

According to her disclosure papers to the U.S. Senate, she was Greenberg’s lead attorney in the case of Elian Gonzalez, a minor who sought asylum in the United States after his family’s boat capsized on its way from Cuba in 1999. Lagoa argued the case pro bono with two other Greenberg attorneys, she wrote in the disclosure.

She also had some famous clients back then:

She also represented former Van Halen singer Sammy Hagar in a lawsuit seeking to block an unauthorized biography and represented Leor Dimant of the musical group House of Pain in an insurance case after he was involved in an altercation at a Miami Beach club.

Then, in 2006, she was appointed to the Florida Third District Court of Appeal by Jeb Bush. In January of 2019, Ron DeSantis appointed her to the Florida supreme court. Her judicial record in state court reflects a staunchly conservative record:

On Florida’s high court, and before that, on a state appeals court, she repeatedly sided with businesses, helping to turn back a higher minimum wage in Miami, limiting recourse for homeowners facing foreclosure, and reversing or rejecting cases of employees who sued Caterpillar and Uber. Lagoa also wrote a controversial decision finding that DeSantis had broad executive authority to suspend a county sheriff over his handling of the 2018 shooting in Parkland, Fla.

But 2019 was a banner year for Lagoa. In October of 2019, she was nominated to the Eleventh Circuit and in December, she was sworn in. That’s right — Lagoa has been a federal judge for less than a year and she’s already up for a promotion. But don’t worry — this is COMPLETELY NORMAL.

During her confirmation, Lagoa said the right (read: conservative) thing about her judicial philosophy:

“To me, the term ‘judicial activism’ means that a judge is reaching a result based on the judge’s own personal preference. And that is antithetical to what I believe a judge should be,” she later said.

Lagoa said she sometimes personally disagrees with her decisions, and that originalism is an important principle for judges in interpreting the meaning of the U.S. Constitution. “If we are not bound by what the Constitution means, and it’s — it is ever-changing, then we are no different than the country that my parents fled from which is Cuba,” she said. The biography submitted to the Senate ahead of her hearing said she’d been a member of the conservative Federalist Society since 1998. She was confirmed by the Senate by a vote of 80-15.

Though that bipartisan confirmation is being treated with suspicion among some on the far right:

[Coney Barrett backer Tony Perkins of the Family Research Council] said he also raised concerns about Lagoa, whom he describes as a relative unknown. The fact that more than two dozen Democratic senators voted for her 2019 confirmation to her current seat has raised suspicions, Perkins said. (That bipartisan vote is a plus in the eyes of Lagoa’s backers.)

But even in her brief amount of time on the Eleventh Circuit, she’s already proven herself willing to uphold conservative policy goals, even in the face of an overwhelmingly popular ballot measure. She demonstrated her hostility to voting rights, upholding the Republican measure to have former felons who were re-enfranchised in Florida pay undisclosed amounts of fees to actually exercise their rights, as per AP:

In her short tenure on the 11th Circuit, one controversial ruling in which she was among five Trump appointees in the majority was a 6-4 decision earlier this month that Florida felons had to not only complete their prison time but also pay any fines, fees and restitution.

And as noted by Marc Joseph Stern, Lagoa wrote in support of poll taxes, in a move characterized as auditioning for her place on the SCOTUS shortlist:

Lagoa also wrote her own concurrence, joined by no one, that would gut constitutional protections against wealth-based voter suppression. She argued that judges should generally uphold poll taxes when indigent citizens have “alternative avenues” to vote—even when those avenues are arbitrary, discriminatory, or downright illusory. In Florida, people with felony convictions can theoretically regain the right to vote by seeking executive clemency. The state’s clemency board is notoriously biased toward white people and Republicans and rejects the vast majority of applicants, usually for no stated reason. According to Lagoa, however, those biases don’t matter. As long as people theoretically have another way to restore their voting rights, the state may saddle them with a poll tax that they cannot afford to pay.

There is a word for what Lagoa did throughout the Amendment 4 litigation: auditioning. Lagoa proved to Trump that she would even defy judicial ethics to come through for him on a case that could swing the election. Nobody should’ve been surprised when she appeared on the president’s latest Supreme Court shortlist.

And the issue of recusals the Supreme Court struggles with, yeah, it’s not going to get better:

There were calls from supporters of the original felon voting amendment for Lagoa and a fellow 11th Circuit Judge, Robert Luck, to recuse themselves from the case because they participated in a state Supreme Court case on the issue but neither did.

And though it’s one case, it’s a pretty big deal, and could easily be the difference in deciding Florida’s electoral votes.

Lagoa is not just conservative—she’s also a partisan who flouted judicial ethics to disenfranchise hundreds of thousands of people in Florida, potentially throwing the state to Trump. Lagoa’s unprincipled conduct in that case makes her a perfect candidate for the president’s midnight appointment.

And, of course, since Lagoa’s time on the federal bench is so short, we are forced to look at her carefully crafted statement on the issue of reproductive freedom, which, basically tells us nothing:

In response to written questions from Democratic Sen. Dianne Feinstein of California, Lagoa said the 1973 decision “is binding precedent of the Supreme Court and I would faithfully follow it,” noting that for “lower court judges, all Supreme Court precedent, including Roe v. Wade … is settled law.”

Lagoa is married to Jones Day attorney Paul Huck Jr., described as the “godfather of the Federalist Society in Miami.” Her father-in-law is Southern District of Florida judge Paul C. Huck (appointed by Bill Clinton in 2000). And she has three kids.

Listen, she hasn’t been a federal judge for very long, but I think we know all we need to about the kind of Supreme Court justice that Barbara Lagoa would be.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).